Re IP;
[2005] WASC 219
RE IP; EX PARTE IP [2005] WASC 219
| (2005) 30 WAR 504 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 219 | |
| Case No: | CIV:1453/2005 | 2 SEPTEMBER 2005 | |
| Coram: | HASLUCK J | 2/09/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | IP |
Catchwords: | Criminal procedure Certiorari Application to quash proceedings on indictment Consequence of alleged failure to disclose prior to committal Whether committal invalid Application for order nisi refused |
Legislation: | Justice Act 1902 (WA), s 103 |
Case References: | Barney v Parole Board of Western Australia (2000) 117 A Crim R 514 Re Grinter; Ex Parte Hall [2004] WASCA 79 Re Kennedy Ex Parte Crozier & Ors [2002] WASC 190 Re Lawrence; Ex Parte Moltoni & Anor, unreported; SCt of WA; Library No 980010; 16 January 1998 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
IP
Applicant
Catchwords:
Criminal procedure - Certiorari - Application to quash proceedings on indictment - Consequence of alleged failure to disclose prior to committal - Whether committal invalid - Application for order nisi refused
Legislation:
Justice Act 1902 (WA), s 103
Result:
Application dismissed
(Page 2)
Category: A
Representation:
Counsel:
Applicant : Mr L A Tsaknis
Amicus Curiae : Mr N C Monahan
Solicitors:
Applicant : Kott Gunning
Amicus Curiae : State Solicitor
Case(s) referred to in judgment(s):
Barney v Parole Board of Western Australia (2000) 117 A Crim R 514
Re Grinter; Ex Parte Hall [2004] WASCA 79
Re Kennedy; Ex Parte Crozier & Ors [2002] WASC 190
Re Lawrence; Ex Parte Moltoni & Anor, unreported; SCt of WA; Library No 980010; 16 January 1998
Case(s) also cited:
Nil
(Page 3)
- HASLUCK J:
Introduction
1 The applicant has applied for relief by way of certiorari in respect of certain proceedings presently before this Court. There is a forthcoming status conference concerning the indictment in question. I am therefore obliged to deal with this application expeditiously, although the point of law raised is of some complexity.
The application
2 The application for certiorari is brought pursuant to O 56 of the Rules of the Supreme Court. The terms of the application are reflected in a minute of proposed amended originating motion for a writ of certiorari against the respondent dated 1 September 2005.
3 The application is directed to the respondent, Stipendiary Magistrate Woods, being a Magistrate of the Court of Petty Sessions of Western Australia. If the application is allowed, she will be required to show cause before the Court of Appeal at this Honourable Court at the first sitting to be held at the expiration of eight weeks from the date of the order nisi why a writ of certiorari should not be issued to remove into the Court of Appeal and quash the decision of the respondent made at the committal mention on 17 February 2005 to commit the applicant to stand trial at the District Court on a charge of attempted murder in contravention of s 283 of the Criminal Code.
4 Ground (a) in support of the application is in these terms, namely, that the respondent erred in law and exceeded her jurisdiction in committing the applicant to stand trial in circumstances where the prosecution had failed to comply with the requirements of s 103(1) and s 103(2) of the Justices Act 1902 (WA).
5 This ground is supported by certain particulars. It is said that the prosecution failed to disclose to the applicant not later than 14 days before the day of the committal mention on 17 February 2005 copies of depositions obtained by the prosecution, the names of the persons from whom those statements were taken but who the prosecution thinks may be able to give relevant evidence, copies of relevant documents, exhibits or things or notice of where the documents, exhibits or things may be inspected. These are more particularly described in the application. A list is then provided of the various items the subject of that contention. I will
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- not traverse the entirety of the list which runs from subpar (a) to subpar (q) in the amended application before me.
6 Importantly, however, I note in passing that subpar (b) concerns bloodstained jeans in the boot of the alleged victim's car and notes and forensic results regarding bloodstained jeans and details of conversation with the alleged victim. There is reference in subpar (e) and subpar (f) to tapes seized by or provided to the police, video security surveillance obtained from Channel 10 and notification of certain persons as potential witnesses.
7 A further ground in support of the application is contained in paragraph B of the application. It is expressed in this way:
"The respondent erred in law and exceeded her jurisdiction in committing the applicant to stand trial at the District Court on the charge of attempted murder under section 283(1) of the Criminal Code, the respondent not having jurisdiction to commit the applicant to the District Court having regard to the provisions of section 42(2) of the District Court (Western Australia) Act 1969 and section 283 of the Criminal Code."
8 I pause at this point to observe that the ground I have just referred to, namely ground B, has essentially fallen away. It seems that there was some ambiguity in the transcript as to what occurred before the learned Magistrate on 17 February 2005. A question arose as to whether there was a committal to the District Court when the committal, if any, should properly have been made to the Supreme Court, given the nature of the charge laid; that is, a charge that the applicant attempted to unlawfully kill a certain person contrary to s 283(1) of the Criminal Code.
9 It seems to be now accepted, after a careful examination of the transcript of the hearing, that although some reference was made to the District Court initially, the learned Magistrate corrected herself and the committal was then made to the Supreme Court. Thus, any issue concerning that aspect of the matter can be taken to have fallen away. That aspect of the matter has ceased to be in dispute. I will proceed as if the application for certiorari that I first described, which includes reference to a decision to commit the applicant to stand trial at the District Court, has been amended accordingly.
10 The issue before me is whether the decision of the learned Magistrate to commit the applicant to stand trial at the Supreme Court on a charge of attempted murder should be quashed.
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The committal regime
11 It will be useful to begin by setting the issue in context. The new regime for committal established by the Justices Act in the provisions I mentioned a moment ago places an obligation upon the prosecution to make a full disclosure of statements or depositions and other evidence to be adduced in support of the prosecution case. For ease of reference I will henceforth refer to such matters as details of the prosecution case or the evidence in support of the prosecution case.
12 Details of the prosecution case must be provided prior to the committal mention. It is against the background of disclosure concerning the prosecution case that a decision concerning committal is to be taken by the presiding Magistrate at the committal mention hearing.
13 In the present case, prior to the committal mention hearing on 17 February 2005, there had been various exchanges between the parties in which the applicant, by his legal advisers, endeavoured to obtain particulars of the prosecution case. There had been some preliminary hearings bearing upon those exchanges. Defence counsel contended that on 17 February 2005, when the committal mention hearing took place, certain details of the prosecution case were still outstanding.
14 Notwithstanding that position adopted by the defence (that is, that there should be no committal mention while such matters were outstanding) a decision was taken by the learned Magistrate to commit pursuant to s 104(3) of the Justices Act. According to that provision, unless the defendant pleads guilty to the charge, the Court is to commit the defendant to a court of competent jurisdiction for trial.
15 The matter then went forward to the Supreme Court and an indictment was eventually presented. It has been quite clear at all times that the charge in the indictment will be contested. The plea of not guilty is being maintained as exchanges concerning disclosure of the prosecution case run on.
16 I am informed that most of the matters concerning disclosure have now been conveyed to the defence. The parties acknowledge also that as part of the pre-trial procedures in the Supreme Court concerning an indictment of this kind there is a continuous obligation on the prosecution to disclose. Indeed, pre-trial procedural provisions allow for directions to be given which will ensure that the defendant receives a fair trial and is fully apprised of the prosecution case before the trial commences.
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17 It would probably strike an observer, when the matter is presented in this context, that there is not likely to be an unfairness or prejudice to the applicant (that is, the accused) prior to the commencement of the trial in real terms. In other words, if further details of the prosecution case are required before trial, appropriate directions can be obtained for the disclosure to be made.
18 Thus, in essence, what is complained of as I perceive it, is not so much that the accused may be prejudiced unfairly in the conduct of his defence at the trial, but, rather, that as a consequence of what happened on 17 February 2005 he lost the opportunity not to be committed for trial at all. Broadly described, the applicant's position before me is that the steps taken by the learned Magistrate, and the decision to commit, were taken in circumstances where there had been a non-compliance with the provisions of the Act as to disclosure. It is said that this gave rise to an invalidity. The proposed writ of certiorari is directed to obtaining a ruling that the committal was invalid and that the prosecution ought not to proceed as presently constituted.
A central issue
19 A central issue before me is to define the consequences of an alleged failure to comply with the requirements of s 103 of the Justices Act concerning disclosure of the prosecution case prior to committal.
20 I pause here to say that I am conscious that since 17 February 2005 the Justices Act has been repealed. The Criminal Procedure Act 2004 (WA) has come into operation with effect from 2 May 2005. The Magistrates Court Act has come into force. It follows that there is a subsidiary issue as to the impact of this legislation on the matter I am dealing with.
21 I have to say, however, that, to my mind, the subsidiary issue does not bear directly upon the matters I am now dealing with. I will not endeavour to resolve all the fine points that may arise concerning that aspect of the matter. I will proceed from the premise that as the Justices Act was in force at the time of the committal, the provisions of that Act governed the position I am required to examine. I am of the view that I am dealing with a matter of important substantive rights. It follows that I should deal with and analyse the law as it stood at the date of the committal; that is, on 17 February 2005.
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Further considerations
22 Having described the background to the matter in general terms, and having identified the issues to be resolved, let me now turn to one or two other general considerations.
23 The applicant was represented by counsel and I have been provided with detailed submissions. The learned Magistrate has filed papers indicating that she will abide by the ruling of the Court. In addition, I have given leave to the State Solicitor for Western Australia to appear by counsel as amicus curiae. Detailed submissions have been put before me by counsel, Mr Monahan, acting in that capacity. I will take account of all these materials.
24 I remind myself also that what is before me at this stage is an application for an order nisi. Counsel for the State has put before me detailed submissions as to the appropriate test to be applied where an order nisi is sought and that is referred to also in the submissions made by counsel for the applicant.
25 I do not intend to traverse all the authorities bearing upon the test to be applied in making an order nisi. It will be sufficient to refer simply to what was said by Murray J in Re Kennedy; Ex Parte Crozier & Ors [2002] WASC 190. In that case he said at par 2:
"The application for certiorari was made under the Rules of the Supreme Court 1971 (WA), O 56 r 1 to have the order nisi made returnable before the Full Court or alternatively before a single Judge. At the order nisi stage my task was to consider whether the applicants could show an arguable case that upon the return of the order nisi an order absolute would be made or a writ would issue. The purpose at this stage is to eliminate those cases which have no prospect of success, on a cursory examination by the court of the matters at issue: Talbot v Lane (1994) 14 WAR 120, 152."
26 In other words, it is said that the test at the order nisi stage is for an arguable case to be demonstrated. However, in looking at the matter in that light, I must also take account of a number of the authorities that are referred to by counsel as amicus curiae. These authorities indicate that, in weighing up matters bearing upon the exercise of discretion, the Court will not ordinarily issue a writ of certiorari if it is considered that this would be a futile remedy or, to put it another way, if no useful result could
(Page 8)
- ensue: Barney v Parole Board of Western Australia (2000) 117 A Crim R 514.
27 It is said also that the Court is particularly reluctant to interfere with pending criminal proceedings because of the dangers of fragmenting the orderly progress of the criminal process.
28 It was said in Re Lawrence; Ex Parte Moltoni & Anor, unreported; SCt of WA; Library No 980010; 16 January 1998 that the applicant's for an order nisi must show that they have an arguable case for the grant of relief sought in the final form before the orders nisi are made. That may include in an appropriate case persuading the court that it is at least arguable that prerogative relief would not be refused upon discretionary grounds.
29 In relation to a case where the grant of such relief would have the effect of interfering with or precluding the pursuit of criminal or quasi-criminal proceedings at a preliminary stage prior to their final disposition, the Courts have been traditionally reluctant to grant the relief.
30 Let me turn now to the relevant statutory provisions.
The statutory provisions
31 I will not traverse the statutory provisions at length. However, in s 103 of the Justices Act as it stood at the material time, provision is made for the prosecution to serve on the defendant and file particulars of the prosecution case. The requirement must be complied with not less than 14 days before the day of the committal mention hearing. By subpar (4) the Court may order that the particular requirement be dispensed with if the Court is satisfied there is good reason for doing so and no miscarriage of justice will result.
32 Importantly, it is said in subpar (7) importantly that if the prosecution does not comply with a requirement of subs (1) and that requirement has not been dispensed with under subs (4), the Court may discharge the defendant or adjourn the hearing of the complaint to enable compliance with that subsection as the Court thinks fit.
33 Section 104 deals with procedure on committal mention and, importantly, as I indicated earlier, unless the defendant pleads guilty to the charge, the Court is to commit the defendant to a court of competent jurisdiction for trial. The duty to commit is expressed in unequivocal terms and appears to be mandatory.
(Page 9)
34 I pause here to say that the consequences of non-compliance with s 103 are not directly spelled out. Counsel for the applicant in the present case suggests that in the circumstances before me, the consequence of non-compliance as to a matter of disclosure would be that any committal made pursuant to that would simply be invalid. That proposition is very central to his argument.
35 However, it might strike an observer, reviewing the provisions I have mentioned that subs (7), being the provision I referred to a moment ago, allows the Magistrate some alternatives in regard to non-compliance; namely, to adjourn or to discharge. That matter must be kept in mind also.
The process of interpretation
36 Because there is some ambiguity as to the consequences of non-compliance, I consider that I am entitled to have resort to extraneous materials in interpreting these provisions.
37 I pause here to say that, within the traditional framework of the criminal law, the process of committal was an important stage in ensuring that innocent people were not needlessly brought to trial. Under the earlier regime, the prosecution case was tested at a committal hearing and a decision was made by a judicial officer as to whether there was a case of sufficient strength to permit a committal for trial to be made.
38 However, it is now recognised that the former regime has been replaced by an entirely new regime, being the regime reflected in the provisions I mentioned.
39 There is very lengthy discussion of the history of these legislative reforms in the decision of the Full Court in Re Grinter; Ex Parte Hall [2004] WASCA 79. The judgments in that case, particularly the judgment of McKechnie J, make it quite clear that a new regime has been introduced under and by virtue of the provisions I mentioned.
40 It is with these thoughts in mind, in turning to extraneous materials, that I come to the speech in Hansard of 27 March 2002 made by the Attorney-General upon the second reading of the relevant Bill. He said this at 9029 of Hansard:
"Under the new system, the police will still be required to provide the defendant with a statement of the material facts and copies of any confessional material. Hence, the first step of
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- disclosure remains unchanged. This ensures that if defendants who intend to plead guilty do so at the earliest possible opportunity, prosecution resources will not be wasted. If the defendant does not plead guilty, a date for a committal mention will be set by the Court of Petty Sessions. The new second stage of disclosure must occur at least 14 days before the committal mention date. The prosecution must comprehensively disclose the prosecution case to the defendant. This will involve serving on the defendant copies of every statement or deposition obtained by the prosecution; the names and addresses of any other witnesses who may be able to give relevant evidence; a copy of the criminal history of the defendant; and copies or details of other relevant documents.
At the committal mention, the defendant is required to plead to the charge. If the defendant pleads guilty, the court will commit the defendant to a higher court of competent jurisdiction for sentencing. Alternatively, if the defendant does not plead guilty, the court must commit the defendant for trial in a superior court. After a defendant is committed to a superior court for trial, and an indictment is presented against the person, the third stage of disclosure takes place. As soon as is practicable after presentation of the indictment, the prosecution must disclose to the defendant a copy of every statement or deposition obtained by the prosecution; the names and addresses of any other witnesses who may be able to give relevant evidence; a copy of the criminal history of the defendant; and copies or details of other relevant documents. At this stage, the DPP will be responsible for providing the disclosure. Requiring disclosure in the second and third stages is intended to ensure that the obligation to provide full disclosure is an ongoing obligation imposed on the prosecution."
41 It emerges, then, in summary, as appears in the passage I have quoted, which I take to be a fair description of the provisions in question as I read them myself, that if the defendant does not plead guilty, the Court must commit the defendant for trial in a superior Court. Moreover, it seems that there will be a third or further stage of disclosure lying beyond the committal. In other words, allowance is made for a carefully graduated process of disclosure of the prosecution case.
42 It strikes me, as I stand back and look at the provisions as a whole, that if a Magistrate comes to the point of exercising a discretion under
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- subpar (7) as to what should be done, in circumstance where there has arguably been a failure to comply with the disclosure requirement, a factor bearing upon the exercise of that discretion might be that there will be an opportunity for the accused and his advisers to obtain disclosure at the third stage, further down the track.
The present case
43 In the present case, it is said that when the matter came before the Magistrate for committal mention on 17 February 2005, against the background of previous hearings and various exchanges, the applicant's counsel complained of a failure by the State to disclose three items. The matters in question are referred to in this passage of the transcript which I will quote in full:
"… There are aspects of evidence in this matter that are not and have not been disclosed by the prosecution. It's my instructions that the running sheet details of contents of SMS text messages to the victim which we do not have - that's one. Secondly, there are apparently jeans with blood on them that were found in the boot of a motor vehicle. We understand that those have been the subject of testing by the prosecution. We've had no notice of the results of that testing; nor have we had any correspondence or discussion in relation to that item of evidence, if in fact it is evidence from the prosecution.
Thirdly and perhaps most conclusively, ma'am, there is a footprint - pardon me; there was a footprint in the garden of … at the scene and it's our understanding that a cast has been taken of this footprint. This cast has not been provided to us by the prosecution."
44 As I have indicated, it seems to be now recognised and accepted by counsel on both sides that most of the matters sought have been provided. If not provided they can certainly be provided pursuant to pre-trial directions concerning disclosure. It is said that the matters so far not provided are the item comprising the bloodstained jeans (being the item in subpar (b) I mentioned earlier) and the Channel 10 tape.
45 However, it is said, in the light of the passage in the transcript I have quoted, that the Magistrate was clearly on notice at the committal mention hearing that there had not been a disclosure of a matter which it now seems to be accepted should have been disclosed.
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The committal
46 It appears from the transcript of the hearing on 17 February 2005 that the Magistrate declined to grant a further adjournment sought by defence counsel. The Magistrate said:
"Whatever way you look at it, this has been going on and on and on and the matter will not be listed for trial immediately in any event and there will be plenty of time for that footprint material to be provided because if it is not, then it won't be able to be relied on. The matter will be committed for trial".
47 This brings me to the central proposition of the applicant's argument before me. It is said that against this background a committal for trial was made in circumstances where it was known or perceived or reasonably ought to have been perceived that there had not been a full disclosure; that is, there had been a lack of compliance with s 103 of the Act. It was submitted to me that this gave rise to an invalidity in the committal for trial made. It is that matter in respect of which the order nisi is sought and in respect of which ultimately a ruling by the Court of Appeal will be sought.
48 I have noted that it is only necessary for an arguable case to be demonstrated by the applicant in order to obtain an order nisi. However, that approach includes consideration of the other principles I referred to earlier concerning exercise of the discretionary power in circumstances where the relief afforded could be futile or might disrupt the orderly progress of criminal trial procedures.
49 As I have noted, there is no specific indication in either s 103 or s 104 as to what the consequence of an alleged non-compliance is. I am conscious that if there be a failure to comply by the prosecution or an alleged failure to comply, then, in practical terms, there is a remedy allowed for in s 103 itself in that there is a discretion to adjourn and even a discretion to discharge the defendant. Thus, if the prosecution was obdurate or defiant in refusing to make proper disclosure, then of course, the sanction could be that the case was adjourned or the defendant discharged. It follows that the threshold requirement whereby persons ought not to be too lightly committed for trial and ought not to be referred to trial unless there is a sufficient body of evidence against them, is allowed for by the new regime.
50 All of this suggests to me that the consequence of a failure to disclose in the circumstances of this case does not give rise to an
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- invalidity of the kind contended for by the applicant. It seems to me that, essentially, what the learned Magistrate did in the present case (albeit without articulating her reasons fully) is this: she took account of the fact that there had been a substantial degree of disclosure, notwithstanding that certain items remained in contention. That state of affairs had arisen against a background of ongoing and quite lengthy exchanges. She therefore proceeded to address the discretion allowed to her under s 103(7). The options available to her were to adjourn or to discharge the defendant. However, if the discretion was not exercised in that manner, the corollary was, as appears to follow from s 104 of the Justices Act, that the Court was required to commit the defendant to a court of competent jurisdiction. That is what the learned Magistrate purported to do. To my mind, she took account of and was working within the framework of the new regime concerning committal mention that I have described.
51 It seems to me, as I noted in earlier discussion, that, in exercising her discretion, it was open to the learned Magistrate to take account of the fact that what was being complained of was an inadequacy as to disclosure, and the reality was that further opportunities to obtain disclosure, and further obligations of disclosure imposed upon the prosecution, lay ahead in what the Attorney-General described as the third stage of the regime for disclosure. Accordingly, I am of the view that it was open to the learned Magistrate to arrive at the decision that she did, namely, to commit the accused to trial. I cannot see that such a decision was productive of undue prejudice to the defendant because, as I have said, much of the disclosure has now taken place pursuant to the ongoing pre-trial disclosure procedures and that appears to be acknowledged. Even if there be some ongoing controversy concerning that aspect of the matter, it remains open to the defence pursuant to the disclosure provisions bearing upon a matter after the indictment has been presented to obtain whatever disclosure is necessary. So for all these reasons I am not persuaded that the step taken by the Magistrate gives rise to an invalidity of the kind contended for.
52 I am conscious that there may be room for argument about this. In certain circumstances, in regard to the grant of an order nisi, it sometimes happens that a contentious matter is referred to the Full Court, now the Court of Appeal, for a decisive ruling. However, the requirement that an arguable case be made out is commonly regarded as a filtering mechanism. As I have noted in reviewing the decided cases, consideration must be given not only to the point of statutory interpretation but to the manner in which the discretionary power to grant an order nisi should be exercised.
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53 The courts are generally somewhat reluctant to interfere with the orderly progress of a criminal prosecution. Moreover, as I turn my mind to the question of whether in the exercise of a discretion an order nisi for certiorari should be made in the present case, I am of the view that the factors I have mentioned weigh against the making of an order nisi. On my interpretation of the statutory provisions, I doubt that the Court of Appeal would hold that certiorari should be issued in these circumstances; that is, where such a order would interfere with the progress of a case towards trial and in circumstances where there is no real and discernible likelihood of prejudice in regard to matters of disclosure for the reasons I have given.
Conclusion
54 It follows from these reasons that I am not persuaded that there is an arguable case justifying the making of an order nisi in the manner sought by the applicant. I rule accordingly.
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